SUPREME COURT OF GEORGIA
Case No. S23A1063
March 14, 2024
The Honorable Supreme Court met pursuant to adjournment.
The following order was passed:
ANDRE PUGH v. THE STATE.
Upon consideration, the Court has revised the deadline for
motions for reconsideration in this matter. It is ordered that a
motion for reconsideration, if any, including motions submitted via
the Court’s electronic filing system, must be received in the
Clerk’s Office by 12:00 p.m. on Friday, March 22, 2024.
SUPREME COURT OF THE STATE OF GEORGIA
Clerk’s Office, Atlanta
I certify that the above is a true extract from the
minutes of the Supreme Court of Georgia.
Witness my signature and the seal of said court hereto
affixed the day and year last above written.
, Clerk
NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In the Supreme Court of Georgia
Decided: March 14, 2024
S23A1063. PUGH v. THE STATE.
BETHEL, Justice.
Andre Pugh was convicted of the malice murder of his wife
Tiffany Jackson-Pugh and possession of a firearm during the
commission of a felony. 1 In this appeal, Pugh contends that the trial
court erred by denying his motion to suppress evidence obtained
pursuant to a search warrant for his cell phone records, that trial
1 The crimes occurred on November 23, 2014. On February 16, 2016, a
Fulton County grand jury indicted Pugh and co-indictee Adrian Earl Harley
for malice murder (Count 1), felony murder (Count 2), aggravated assault
(Count 3), conspiracy to commit murder (Count 4), and possession of a firearm
during the commission of a felony (Count 5). Pugh was tried alone before a jury
from September 24 to October 5, 2018, and was found guilty of all counts. The
trial court sentenced Pugh to serve life in prison without the possibility of
parole on Count 1 and five years on Count 5, to run consecutively to Count 1.
The remaining counts were vacated or merged. On October 23, 2018, Pugh,
through new counsel, filed a timely motion for new trial, which he amended on
December 18, 2020. Following a hearing, the trial court denied the motion, as
amended, on April 18, 2023. Pugh thereafter filed a timely notice of appeal.
The case was docketed to this Court’s August 2023 term and submitted for a
decision on the briefs.
1
counsel was ineffective for failing to raise a particularity challenge
to the same search warrant, and that motion-for-new-trial counsel
was ineffective in various respects. Concluding that these claims are
meritless, we affirm.
1. The evidence presented at Pugh’s trial showed the following.
Around 6:00 a.m. on November 23, 2014, Tiffany was shot and killed
while asleep in her bed at the Pughs’ East Point residence. At 6:05
a.m., Pugh called his boss to report that someone had broken into
his home. Pugh’s boss drove to Pugh’s home, and when he arrived,
Pugh indicated that he had not been inside the residence but had
noticed a suspected intrusion upon his return from overnight
employment. At approximately 6:15 a.m., Pugh called 911 and
informed the operator that he was at the residence, the garage door
was open, and a downstairs window was broken. He told the
operator that Tiffany had been murdered but again claimed that he
had not been inside the home.
When responding officers arrived, Pugh was outside the home,
waving his arms, and exclaiming, “My kids are in there. She’s not
2
picking up the phone.” Pugh stated that he received a call from ADT,
his alarm-service provider, alerting of a break-in at the residence.
Pugh further noted that the garage door and a rear window were
open. Pugh also called a neighbor early that morning while “it was
still dark” to report that someone broke into the house, that “they
hurt Tiffany,” and that Pugh thought Tiffany was dead.2
Upon entering the house, officers found Tiffany in bed in the
main-level bedroom; she was bleeding from a gunshot wound to her
left eye, which was “obviously swollen and oozing,” and had no
pulse. 3 Her crying toddler was sitting on her chest; two older
children were asleep in an upstairs bedroom. Officers found the
basement door and storm door unlocked, a basement window open
with its screen cut, and the gate to the backyard open; during a
sweep of the house, they found nothing else of interest.
2 A precise timeline for this conversation was not clearly established at
trial. But, immediately following the call, the neighbor dressed and walked
from two doors down to the Pugh residence where he found police already on
the scene.
3 A subsequent autopsy revealed that Tiffany was shot twice, once in the
left eye and once near the left breast; the gunshot wound to the head was
determined to be the cause of her death.
3
That morning, Pugh, whom law enforcement did not yet
consider a suspect in Tiffany’s murder, provided a statement to
police, a video-recording of which was played at trial. According to
Pugh, he left work around 5:15 a.m., and, sometime between 5:30
a.m. and 5:50 a.m. while driving home, he missed a call from ADT.
Pugh returned the call and requested that ADT turn off the alarm
so as not to disturb his children. Pugh stated that, upon arriving at
home, he went inside to find the alarm still armed. When he turned
on a light in Tiffany’s bedroom, he “just saw a body,” but he claimed
that he did not notice any blood and that she appeared to be
sleeping. He also claimed that he did not try to wake Tiffany because
he was “scared.” Pugh then went downstairs and found broken glass.
Pugh stated that he told responding officers that he could not find
his son and that his wife was not moving. When asked why he left
his children inside the home despite signs of an apparent break-in,
Pugh responded that he did not want to wake the older children and
that he was unable to find his son.
During the interview, Pugh expressly stated that he had only
4
one cell phone; the next day, however, investigators learned that
Pugh in fact had a second cell phone. Thereafter, officers secured
search warrants to obtain the records for both phone numbers from
Sprint, the cell-service provider, as well as for a tower dump of phone
numbers used on the Sprint cell phone tower near Pugh’s residence
around the time of the crime. By cross-referencing phone numbers
appearing in the tower dump with those in Pugh’s contact list,
investigators identified co-indictee Adrian Harley as a person of
interest.4 Data from Pugh’s and Harley’s cell phones showed that
both phones were near the residence just before the murder and that
several calls were exchanged between the phones.
Investigators also obtained security footage from Pugh’s and a
neighbor’s5 residences around the time of the murder, which
investigators determined occurred at approximately 5:58 a.m. The
footage showed two vehicles on the street and in the cul-de-sac near
4 At the time of the crimes, Pugh worked as a disc jockey at Club Onyx,
an adult entertainment club. Harley, Pugh’s long-time friend, was employed
as his assistant.
5 The neighbor testified that he lived two houses down from the Pugh
residence.
5
Pugh’s residence shortly before the murder. One vehicle, which had
a non-operative driver-side parking light, first passed the neighbor’s
residence at 4:50 a.m., corresponding to Harley’s phone records
placing him in Pugh’s neighborhood at 4:49 a.m. That same vehicle
pulled into the cul-de-sac about ten minutes before the murder,
where it remained parked for several minutes. At 5:57 a.m., the
vehicle’s headlights flashed, and a second vehicle pulled alongside
it. At 5:58 a.m., the vehicle with the non-operative parking light
moved forward and stopped in front of Pugh’s house for two or three
minutes; the other vehicle drove away. Security footage showed that,
soon thereafter, a light came on in the rear of the residence. Also at
5:58 a.m., Pugh received a phone call from ADT. Investigators later
determined that the vehicle with the non-operative parking light
matched the appearance of Harley’s vehicle, which also had a nonoperative driver-side parking light.
At trial, the State presented evidence undermining Pugh’s
various stories about his actions on the morning of Tiffany’s murder.
Records from ADT showed that ADT called Pugh at 5:58 a.m. and
6
that Pugh returned the call at 6:03 a.m., contradicting Pugh’s claim
that the call regarding the triggered alarm came between 5:30 a.m.
and 5:50 a.m. Surveillance footage showed that, upon parking and
exiting his vehicle in front of the home, Pugh in fact did not enter
the home in the manner he described and instead waited for the
police outside, despite his fairly detailed statement to the contrary.
The State also presented significant evidence of Pugh and
Tiffany’s marital difficulties and impending divorce. In September
2014, Tiffany consulted a divorce attorney, made plans to move out
of the marital residence on December 1, and intended to file for
divorce. According to Pugh’s boss, Pugh was angry with Tiffany for
wanting a divorce. Text messages between Pugh and Tiffany
reflected discord in the relationship. Five days before the crimes,
Pugh texted Tiffany, “I won’t let you leave me now or never.” Tiffany
responded that she took the statement “as a threat.” In other text
messages found on Pugh’s phone, Pugh engaged in sexually explicit
conversations with multiple women, exchanged sexually explicit
photographs with other women, and stated that he cheated on
7
Tiffany every time she was out of town. In addition, a co-worker of
Tiffany’s with whom she had a romantic relationship in the weeks
before her death testified regarding Pugh’s suspicions about that
relationship. Pugh’s boss testified that Pugh placed a second phone
in Tiffany’s vehicle to use as a GPS tracker because Pugh had been
“speculating” that Tiffany “was possibly cheating” and that Pugh
had previously sent Harley to the marital residence to lock Tiffany
out of the home.
Evidence of Pugh’s financial motive for the murder was also a
prominent focus of the State’s case, with text messages showing that
Pugh would be unable to maintain the marital home following the
divorce. Within 36 hours after Tiffany’s murder, Pugh reported to
his boss that he went to the social security office to “find out how
much — what he can get for the passing of his wife” and that, “based
upon what social security told him, he was going to be able to
maintain paying his mortgage.” And a family friend testified that,
before Tiffany’s funeral, Pugh sought her help in contacting
Tiffany’s employer’s benefits provider. Finally, the State presented
8
testimony regarding Pugh’s unusual conduct and demeanor in the
wake of Tiffany’s murder, particularly his general lack of emotion
and apparently contrived expressions of grief.
2. On appeal, Pugh challenges the trial court’s denial of his
motion to suppress evidence obtained pursuant to a search warrant
for his cell phone records. As he did below, Pugh argues that the
warrant application failed to establish probable cause to believe that
he had committed a crime or that evidence of such crime would be
found in the phone records. He also asserts for the first time on
appeal that the warrant authorized the seizure of items for which
there was no probable cause and, thus, was overbroad. And in a
related claim, Pugh contends that trial counsel was ineffective for
failing to challenge the warrant on particularity grounds.
(a) The search warrant at issue was obtained by Sergeant Allyn
Glover on November 24, 2014, the day after the crimes. The affidavit
submitted in support of the search warrant application identified
the place to be searched as “Records of Sprint Phone Number
9
[Ending] -7281,”6 indicated that the search warrant was sought in
connection with the offense of murder, and recited the following
factual basis:
On November 23rd 2014 at approximately 0616 hours,
East Point Police was dispatched to 3782 Lake Haven
Way, East Point, Fulton County, GA in reference to a
trouble unknown call. Prior to their arrival, East Point
Police Communications advised that they had previously
received an alarm call from that location at 0558 hours,
but the alarm was cancelled shortly thereafter.
Communications advised that the resident, Mr. Andre
Pugh would be standing by in front of the residence and
that he noted damage to a rear window. Upon officers
arrival, they were met by Mr. Pugh, who was waving his
arms in the middle of the street continually stating “my
kids are in there! She’s not picking up the phone”.
Officers entered the residence and located a female victim
laying on the bed, on her back, partially covered up by a
blanket with an apparent gunshot wound to the left eye.
A small child was seen straddling the deceased victim.
Mr. Pugh stated that he was not at the residence during
the incident and came home as a result of being notified
by ADT of his house alarm going off. Mr. Pugh later stated
that he missed a phone call from ADT and then returned
their call. Upon arrival to the residence, Mr. Pugh advised
that he looked in on his wife and saw her in the bedroom,
though he didn’t see any blood (though the victim had
6 Though Pugh complains that the affidavit mentions neither the -7281
phone number nor Sprint, he overlooks the enlarged, bold heading which reads
“Records of Sprint Phone Number [Ending] -7281.”
10
visible blood coming from her head). He then looked in on
his kids and then went downstairs to see the broken glass
and then went outside the residence to make phone calls;
thus, leaving his wife and two children inside the
residence. It is believed that this phone would contain
evidence in reference to this crime to include but not
limited to GPS data, call logs, texts, etc.
The affidavit also detailed Sergeant Glover’s experience in law
enforcement.
The search warrant itself identified the place to be searched as
“Records of Sprint Phone Number [Ending] -7281” and authorized
the seizure of the following categories of items:
[1] Subscriber information, credit information, account
comments, billing records from November 6th 2014
through present (or up to time phone may have been
turned off),
[2] Detailed inbound and outbound call lists from and to
above dates to include call origination and termination
location,
[3] Cell site tracking reference above dates,
[4] Physical address of cell sites and RF coverage map,
[5] All incoming and outgoing text messages detail and
text message content for above dates,
[6] Subscriber information on any cellular numbers that
the above number dialed or received calls from that
belong to Sprint
[7] All stored communications or files, including voice
mail, email, digital images, buddy lists, and any other
files associated with user accounts identified with account
11
listed.
[8] Any other records or accounts, including archived
records related or associated to the above referenced
names, user names, or accounts and any data field name
definitions that describe these records,
[9] Any GPS location history available.
[10] Any other information pertaining to this phone
number.
[11] Address books and calendars;
[12] Audio and video clips related to the above-described
criminal activity and further described in this affidavit in
support of the search warrant, for the above-described
item(s);
[13] Call histories and call logs related to the abovedescribed criminal activity and further described in this
affidavit in support of the search warrant, for the abovedescribed item(s);
[14] Photographs and associated metadata related to the
above-described criminal activity and further described in
this affidavit in support of the search warrant, for the
above-described item(s);
[15] E-mail messages and attachments, whether read or
unread and related to the above-described criminal
activity and further described in this affidavit in support
of the search warrant, for the above-described item(s);
[16] Internet World Wide Web (WWW) browser files
including, but not limited to, browser history, browser
cache, stored cookies; browser favorites, auto-complete
form history and stored passwords;
[17] Global position system (GPS) data including, but not
limited to coordinates, way points and tracks for the
previous 5 days;
[18] Documents and other text based files related to the
above described criminal activity and further described in
this affidavit in support of the search warrant, for the
12
above described item(s);
which is being possessed in Violation of O.C.G.A. 16-5-1
Murder[.]
Pugh filed a pre-trial motion to suppress, which summarily
asserted that the search warrants 7 were “insufficient on their face
and there was not probable cause for their search.” Pugh sought
suppression of “all the records searched and seized, and all
information derived therefrom.” At a hearing, Pugh argued that the
affidavit lacked probable cause because “[t]he facts therein do not do
anything besides give rise to speculation o[r] conjecture about Mr.
Pugh’s involvement in the death of his wife.” Pugh contended that
“[a]ll [investigating officers] knew at that time is Pugh’s wife was
7 The motion also addressed a second search warrant obtained by
Sergeant Glover for “Records of Sprint Phone Number [Ending] -2985.” While
Pugh’s brief references the search warrants for both phone numbers, his
arguments on appeal concern only the search warrant for the -7281 phone
number. Under these circumstances, Pugh has abandoned any claim
concerning the validity of the search warrant for the -2985 phone number. See
former Supreme Court Rule 22 (“Any enumerated error not supported by
argument or citation of authority in the brief shall be deemed abandoned.”
(applicable to Pugh’s brief based on its filing date)). See also Moon v. State, 312 Ga. 31, 57 (4) n.12 (860 SE2d 519) (2021) (deeming abandoned under former
Rule 22 unsupported argument that search warrant was invalid). We note that
Pugh concedes that “nothing of evidentiary value was discovered” in the
records for the -2985 phone number.
13
dead. She was shot; that’s it. Pugh was outside. They didn’t like the
way he was reacting, but that’s it. They had nothing else.” The trial
court denied the motion, and later entered a written order finding
that the issuing magistrate “had a substantial . . . basis” for finding
that “probable cause existed for each search warrant.” Against this
procedural backdrop, we turn to Pugh’s claims on appeal.8
(b) Pugh first contends that the affidavit for the search warrant
failed to establish probable cause to support the issuance of the
warrant and that the trial court therefore erred by denying his
motion to suppress. We disagree.
8 We note that, in the trial court, the State argued that a good-faith
exception to the exclusionary rule should apply to preclude suppression of the
evidence seized pursuant to the warrant, though the State also acknowledged
that “Georgia has historically not recognized the good-faith exception.” See
Gary v. State, 262 Ga. 573 (422 SE2d 426) (1992) (construing OCGA § 17-5-30
to hold that Georgia does not recognize the good-faith exception to the
exclusionary rule established in United States v. Leon, 468 U. S. 897 (104 SCt
3405, 82 LE2d 677) (1984)). The State has not reasserted this argument on
appeal, nor has it asked this Court to overrule Gary. Cf. State v. Ledbetter, ___
Ga. ___ (___ SE2d ____) (2024 Ga. LEXIS 58, 2024 WL 923930) (Case Nos.
S23A0900, S23X0901, decided Mar. 5, 2024) (Peterson, P. J., concurring
specially, joined by Boggs, C. J., and LaGrua, J.) (criticizing Gary’s holding and urging this Court to overrule Gary); id. at *40-41 (Bethel, J., concurring, joined by Warren, McMillian, and Pinson, JJ.) (agreeing with “the concerns raised in
Presiding Justice Peterson’s special concurrence” and opining that “the ‘mess’
[arising from Gary] the Presiding Justice describes is due to be cleaned up”).
14
The Fourth Amendment to the United States Constitution
demands that “no Warrants shall issue, but upon probable cause.”
There must be probable cause to believe both “that a crime is being
committed or has been committed” and “that contraband or evidence
of a crime will be found in a particular place.” State v. Britton, 316
Ga. 283, 286 (888 SE2d 157) (2023) (citations and punctuation
omitted). Whether there is probable cause to issue a search warrant
is a question directed in the first instance to the magistrate. And in
assessing whether probable cause exists, the magistrate simply
must make “a practical, common-sense decision,” based on “all the
circumstances set forth in the affidavit before him,” whether there
is “a fair probability” that the particular place to be searched
contains the items to be seized — that is, evidence of a crime.
Copeland v. State, 314 Ga. 44, 49 (3) (875 SE2d 636) (2022) (citation
and punctuation omitted).
Probable cause is “not a high bar,” District of Columbia v.
Wesby, 583 U. S. 48, 57 (III) (A) (138 SCt 577, 199 LE2d 453) (2018)
(citation and punctuation omitted); it requires merely a fair
15
probability — “less than a certainty but more than a mere suspicion
of possibility — which by no means is to be equated with proof by
even so much as a preponderance of the evidence,” Copeland, 314
Ga. at 49 (3) (citation and punctuation omitted). Thus, our duty as a
reviewing court is to determine “whether the magistrate had a
substantial basis for concluding that probable cause existed to issue
the search warrant.” Glenn v. State, 302 Ga. 276, 281 (III) (806 SE2d
564) (2017). And we bear in mind that a magistrate’s decision to
issue a search warrant upon a finding of probable cause is afforded
“substantial deference,” and “[e]ven doubtful cases should be
resolved in favor of upholding a magistrate’s determination that a
warrant is proper.” Id. (citation and punctuation omitted).
Pugh says the facts in the affidavit are lacking and fail to show
that evidence of a crime would be found in his phone records. In
Pugh’s view, the facts in the affidavit do not tie the phone records to
the investigation of Tiffany’s murder and do not connect the -7281
phone number to Pugh or to the phone he possessed at the time of
the murder. Pugh is correct that the affidavit does not expressly tie
16
the phone records to the murder investigation or connect the target
phone number to Pugh, but that does not necessarily defeat a finding
of probable cause. We judge the affidavit supporting a search
warrant “on the adequacy of what it does contain, not on what it
lacks, or on what a critic might say should have been added.” United
States v. Allen, 211 F3d 970, 975 (III) (6th Cir. 2000). Thus, in
assessing probable cause, we take reasonable inferences into
account. See Britton, 316 Ga. at 286 (1). Considering the totality of
the circumstances outlined in the affidavit, the magistrate was
authorized to make “certain common-sense conclusions about
human behavior,” Illinois v. Gates, 462 U. S. 213, 231 (III) (103 SCt
2317, 76 LE2d 527) (1982), and infer that Pugh was somehow
involved in Tiffany’s murder, that evidence of his location and
communications in the time surrounding the murder might be found
in his cell phone records, and that the target phone number belonged
to Pugh. See State v. Ledbetter, ___ Ga. ___ (2) (___ SE2d ____) (2024
WL 923930, 2024 Ga. LEXIS 58) (Case Nos. S23A0900, S23X0901,
decided Mar. 5, 2024); Taylor v. State, 303 Ga. 57, 61 (2) (810 SE2d
17
113) (2018).
Here, the affidavit provided facts about Tiffany and her
connection to Pugh, including that she and Pugh were married, that
they had children, and that the family resided together. The
affidavit also described Pugh’s conduct and his interactions with
police, including what could be viewed as the very unusual decision,
made under the purported belief that an intruder had broken into
his home, to leave his sleeping wife and children in the home while
he waited outside. As detailed in the affidavit, Pugh’s behavior was
flatly inconsistent with his frantic cries to the first responding
officers about his kids being in the home and Tiffany not answering
her phone. Further, Pugh’s own account of returning home and his
claim that he did not notice Tiffany bleeding was contradicted by
physical evidence at the scene. And while a window of the residence
was damaged, the fact that the sounding alarm was quickly
deactivated indicated that whoever entered the residence, and
presumably killed Tiffany, had knowledge of the alarm code. Taken
together, Pugh’s implausible behavior, his relationship with the
18
victim and connection to the residence where the crime occurred, the
inconsistency between his statement and the evidence at the scene,
and evidence suggesting that the crime was committed by someone
familiar with the residence’s alarm code showed a fair probability
that Pugh was involved in Tiffany’s murder. See Wesby, 583 U. S. at
59 (III) (A) (“Based on the vagueness and implausibility of the
[suspects’] stories, the officers could have reasonably inferred that
they were lying and that their lies suggested a guilty mind.”); United
States v. Ameling, 328 F3d 443, 449 (8th Cir. 2003) (A suspect’s
“apparently false statements and inconsistent stories,” in the
totality of the circumstances, can provide probable cause that he was
“involved in criminal conduct.”).
Not only did the affidavit support the inference that Pugh had
some involvement in Tiffany’s murder, it also offered a substantial
basis for the magistrate to conclude that a fair probability existed
that Pugh’s cell phone records would contain evidence of the crime.
The facts in the affidavit indicated that Pugh was using his cell
phone around the time of the murder—he reported missing the
19
initial call from ADT, he indicated to police that he had attempted
to call Tiffany but that she failed to answer, and he said he made
phone calls while waiting on police to respond to the residence. From
these facts, the magistrate could reasonably infer that Pugh’s cell
phone records would contain information about his communications
and whereabouts around the time of the crime, which, logically,
could provide evidence of his involvement in Tiffany’s murder.
Indeed, Sergeant Glover averred as much; after detailing his
experience and training and Pugh’s conduct at the scene, including
making several phone calls, he indicated his belief that “this phone”
would contain evidence related to the crime,9 including “but not
9 Pugh takes issue with this statement, arguing that “[m]ere belief or
suspicion is never enough to support a search warrant.” But the affidavit at
issue here is not remotely comparable to the bare-bones affidavits entirely
devoid of facts that were found insufficient in the cases upon which Pugh relies.
Specifically, Pugh points to Nathanson v. United States, 290 U. S. 41, 44, 47
(54 SCt 11, 78 LE 159) (1933) (holding insufficient affidavit which stated only
that the affiant “has cause to suspect and does believe” that “[c]ertain liquors
of foreign origin” illegally brought into the United States were located at a
particular premises); Smoot v. State, 160 Ga. 744, 746-747 (128 SE 909) (1925)
(“The affidavit is based only upon the statements of the affiant that ‘he has
reason to believe that a quantity of intoxicating liquor is in the dwelling-house
of [appellant], and verily believes upon probable cause that the intoxicating
liquor is kept in violation of the laws of the State of Georgia.’ . . . [I]t
20
limited to GPS data, call logs, texts, etc.” See United States v. Floyd,
740 F3d 22, 35 (II) (B) (3) (1st Cir. 2014) (“[A] law enforcement
officer’s training and experience may yield insights that support a
probable cause determination.”).
Though Pugh complains that the -7281 phone number was not
explicitly connected to him or to the phone he possessed at the time
of the murder, this argument fails. As we recently explained in
rejecting a similar claim in Ledbetter, at *27 (2) (a) (i), the absence
of an express connection, “by itself, is not a fatal flaw” and, as with
other questions of probable cause, requires the reviewing court to
consider “all the circumstances” presented in the affidavit to
determine whether the magistrate could have inferred the necessary
is apparent from the affidavit that no fact which would have afforded the basis
for a legal conclusion of probable cause was before the court[.]” (punctuation
omitted)); and Johnson v. State, 111 Ga. App. 298, 305 (1) (c) (1965) (“Certainly, since no facts of any kind were stated in the affidavit, it was deficient in this
respect. . . . Does the recital in the warrant, ‘evidence having been submitted
to me to show probable cause,’ meet the requirement? . . . Obviously not.”).
Pugh’s complaint that Sergeant Glover believed evidence would be found on
“this phone,” rather than phone records, is also unavailing, as such
“hypertechnical” assessments have no place in the test for probable cause. See
Gates, 462 U. S. at 236 (III) (“[C]ourts should not invalidate warrants by
interpreting affidavits in a hypertechnical, rather than a commonsense,
manner.” (citations and punctuation omitted)).
21
link. Here, as in Ledbetter, the affidavit indicated that law
enforcement had an opportunity to learn Pugh’s phone number by
noting that Pugh made multiple statements to police regarding his
phone use around the time of the crime. See Ledbetter, at *36-37 (b)
(i). Pugh’s was the only name mentioned in the affidavit, he was the
focus of the affidavit’s narrative, and only one phone number was
referenced in the affidavit. See Taylor, 303 Ga. at 61 (2) (rejecting
argument that warrant was not supported by probable cause for
failure to expressly state that address to be searched was appellant’s
address because, in light of other information in the affidavit, “the
magistrate, making a practical and common-sense decision, was
entitled to infer that there was a ‘fair probability’ that [appellant]
lived at” the target address); United States v. Hunter, 863 F3d 679,
682 (I) (7th Cir. 1996) (although affidavit did not explicitly state that
address to be searched was appellant’s residence, “that is the only
logical conclusion supported by a common-sense reading of the
affidavit,” which “referred four times to [appellant’s] residence” and
“made no reference to any other place connected to [appellant]”).
22
Moreover, “[t]here was nothing in the affidavit . . . to lead the
magistrate to believe that the . . . phone number[ ] [was] associated
with” anyone other than Pugh. Ledbetter, at *29 (2) (a). While it
would have been helpful to include the fact that Pugh used the -7281
phone number, see Ledbetter, at *31 and n.24 (2) (a) (i) (noting that
“argument on this point would have been more easily resolved if the
drafter of the warrant had taken the small, but important, extra
step of expressly linking” the target phone number to the user and
“encourag[ing] law enforcement to provide such information on the
face of the warrant application or affidavit”), we conclude, in light of
all the circumstances, that the affidavit nevertheless provided the
issuing magistrate with sufficient information from which the
magistrate could reasonably infer that the -7281 phone number
belonged to Pugh. For all these reasons, we conclude that the
magistrate had a substantial basis for finding that probable cause
existed to issue the search warrant, and this claim fails.
(c) Pugh next asserts, for the first time on appeal, that the
affidavit failed to establish probable cause to search for and seize
23
certain categories of evidence specified in the search warrant.
Because Pugh did not challenge the warrant on this basis in the trial
court, we review only for plain error. See Williams v. State, 315 Ga.
490, 494-495 (2) (883 SE2d 733) (2023) (applying plain-error review
to particularity challenge to search warrant where appellant did not
move to suppress evidence procured by the warrant on that basis in
the trial court). To establish plain error, Pugh must demonstrate
that the alleged error was not “affirmatively waived”; was “clear or
obvious, rather than subject to reasonable dispute”; “affected his
substantial rights,” meaning that “it affected the outcome of the trial
court proceedings”; and “seriously affects the fairness, integrity[,] or
public reputation of judicial proceedings.” Hampton v. State, 302 Ga.
166, 167 (2) (805 SE2d 902) (2017) (citation and punctuation
omitted). “Satisfying all four prongs of this standard is difficult, as
it should be.” Id. at 168 (2) (citation and punctuation omitted).
Pugh contends that the scope of the items to be seized under
the warrant “exceed[ed] the facts justifying” the warrant’s issuance.
The thrust of Pugh’s argument, as we understand it, is not that the
24
warrant was an unconstitutional general warrant but that it
contained some overly broad provisions that authorized the seizure
of items for which there was no probable cause.
The Fourth Amendment, besides requiring probable cause to
issue a search warrant, requires “probable cause to seize the
particular things named in the warrant.” United States v. Sanjar,
876 F3d 725, 735 (II) (5th Cir. 2017); see Reaves v. State, 284 Ga.
236, 237 (1) (b) (664 SE2d 207) (2008) (“[W]hether probable cause
has been shown for the search for and seizure of the specific items”
described in the warrant is “separate from the question” of whether
there is probable cause “to believe that a certain crime has been
committed and that there is a fair probability that ‘evidence’ of that
crime will be located at the place specified[.]”). If those requirements
are not met, an issue of overbreadth may arise. See Ninety-Two
Thousand Four-Hundred Twenty-Two Dollars & Fifty-Seven Cents,
307 F3d at 148-149 (IV) (A). A warrant suffering from overbreadth
“describes in both specific and inclusive generic terms what is to be
seized, but it authorizes the seizure of items as to which there is no
25
probable cause.” Id. at 149 (IV) (A) (citation and punctuation
omitted); see also United States v. Wilson, 897 F2d 1034, 1039 (10th
Cir. 1990) (The “breadth of a warrant must be justified by the
breadth of the probable cause[.]” (citation and punctuation
omitted)).
Critically, the inclusion of overly broad provisions does not
necessarily doom the warrant in its entirety. See United States v.
Cotto, 995 F3d 786, 798 (II) (B) (2) (10th Cir. 2021) (“[E]ven if the
warrant at issue here is overbroad, suppression of evidence should
be a last resort, not a first impulse.” (citation and punctuation
omitted)). In such cases, the warrant “can be cured by redaction, that
is, by striking from the warrant those severable phrases and clauses
that are invalid for lack of probable cause or generality and
preserving those severable phrases and clauses that satisfy the
Fourth Amendment.” Ninety-Two Thousand Four-Hundred TwentyTwo Dollars & Fifty-Seven Cents, 307 F3d at 149 (IV) (A).
With these principles in mind, we return our focus to Pugh’s
arguments on appeal. As an initial matter, Pugh does not argue that
26
a warrant containing some overly broad provisions is necessarily
wholly invalid. Nor does it appear that Pugh’s overbreadth challenge
concerns records of his communications and location, and, in fact, he
appears to concede that there was probable cause to seize such
records. Instead, without identifying the specific provisions of the
warrant with which he takes issue,10 he complains that the items to
be seized included “internet browser history, photographs and
videos, documents and text-based files, unread emails, and much,
much more,” for which he says probable cause was lacking.
Assuming without deciding that Pugh is correct that the warrant
was overbroad in the respects he contends, his claim nonetheless
fails on the third prong of plain error review because he has not
10 Pugh also notes that the affidavit referenced only “GPS data, call logs,
and texts, etc.,” while the warrant authorized the search for and seizure of a
wider array of items. To the extent Pugh asserts that probable cause to search
for and seize an item is established only if that item is specifically identified in the supporting affidavit, he is incorrect. See Groh v. Ramirez, 540 U. S. 551,
557 (II) (124 SCt 1284, 157 LE2d 1068) (2004) (“The Fourth Amendment, by
its terms, requires particularity in the warrant, not in the supporting
documents.”); United States v. Barajas, 710 F3d 1102, 1109 (B) (1) (10th Cir.
2013) (rejecting argument “that [the] probable cause determination [for seizure
of cell phone GPS data] hinges on the government’s failure to specifically
request GPS data” in the supporting affidavit).
27
shown harm from the inclusion of the allegedly overbroad portions
of the warrant. See Hampton, 302 Ga. at 168 (2) (To prevail on the
third step of the plain error analysis, an “appellant has the burden
to make an affirmative showing that the error probably did affect
the outcome below.” (citation and punctuation omitted)).
Specifically, Pugh has not shown that any evidence admitted
against him at trial was seized solely pursuant to the allegedly
overbroad portions of the warrant as opposed to the requests for
communication and location records that we have already
concluded—and that he has conceded—were supported by probable
cause. Indeed, as far as we can tell—and Pugh does not argue
otherwise—the only evidence obtained pursuant to the warrant that
was later admitted at trial were records of Pugh’s phone calls and
text messages, as well as cell-site location information. 11 See Cotto,
995 F3d at 800 (II) (B) (2) (where warrant contained both valid
provisions and overly broad provision but no evidence was seized
11 Pugh does not argue that the seizure of this evidence led to the
discovery of other evidence that was admitted against him at trial.
28
pursuant to overly broad provision, none of the evidence obtained
during the search should have been suppressed); United States v.
Timley, 443 F3d 615, 623 (I) (8th Cir. 2006) (although warrant may
have been overbroad in certain respects, any failure to suppress
seized evidence was harmless because warrant was sufficient “as to
items seized that formed the basis for the criminal charges”); United
States v. Blakeney, 942 F2d 1001, 1027 (I) (6th Cir. 1991) (where
evidence “seized pursuant to the overbroad portion of the search
warrant was not introduced into evidence,” appellant “was not
prejudiced by the defect in the warrant”). Further, although Pugh
bears the burden of showing harm in the context of plain error
review, see Hampton, 302 Ga. at 168 (2), it is not readily apparent
to us, based on a comprehensive review of the record, what harm
Pugh suffered as a result of this assumed error. For all these
reasons, we conclude that this claim fails.
(d) In his final enumeration of error concerning the search
warrant, Pugh contends that the warrant was insufficiently
particularized such that it constituted a general warrant and that
29
trial counsel was ineffective for failing to raise this claim below. For
the reasons explained below, we cannot agree.
The Fourth Amendment requires a warrant to “particularly”
describe “the place to be searched, and the persons or things to be
seized.” The particularity requirement guards against the “specific
evil” of the “general warrant,” which was “abhorred by the colonists”
and permitted “a general, exploratory rummaging in a person’s
belongings.” Coolidge v. New Hampshire, 403 U. S. 443, 467 (II) (C)
(91 SCt 2022, 29 LE2d 564) (1971) (punctuation omitted). Pugh
raises his particularity challenge through the lens of ineffective
assistance of counsel. To succeed on this claim, Pugh bears the
burden of showing both that trial counsel’s performance was
deficient and that he suffered prejudice as a result. See Strickland
v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674)
(1984). To establish deficient performance, Pugh must show that his
trial counsel performed his duties in an objectively unreasonable
way. See id. at 687-690 (III) (B). To “eliminate the distorting effects
of hindsight,” we must consider Pugh’s claim in light of “counsel’s
30
perspective at the time” and “indulge a strong presumption” that
counsel’s performance was reasonable. Id. at 689 (III) (B). Pugh
“bears the burden of overcoming this presumption” by “show[ing]
that no reasonable lawyer would have done what his lawyer did, or
would have failed to do what his lawyer did not.” Hurston v. State,
310 Ga. 818, 825 (3) (854 SE2d 745) (2021) (citation and punctuation
omitted). To establish prejudice, Pugh must show a reasonable
probability that, but for counsel’s deficient performance, the result
at trial would have been different. See id. at 694 (III) (B).
In addition, “[w]here, as here, an appellant claims that trial
counsel was deficient for failing to file a motion to suppress, the
appellant must make a strong showing that the damaging evidence
would have been suppressed had counsel made the motion.” Tabor
v. State, 315 Ga. 240, 249 (3) (b) (882 SE2d 329) (citation and
punctuation omitted). See also Evans v. State, 306 Ga. 403, 509 (2)
(a) (831 SE2d 818) (2019) (“[T]rial counsel cannot be deficient for
failing to file a meritless motion[.]”). In determining whether an
appellant has carried his burden of making this showing, we ask
31
whether a motion to suppress on the specific basis proposed by the
appellant would “clearly have succeeded” had his trial counsel raised
it. Ward v. State, 313 Ga. 265, 275 (4) (b) (869 SE2d 470) (2022); see
also Reese v. State, 317 Ga. 189, 201-202 (4) (891 SE2d 835) (2023).
Also relevant to our analysis is whether appellant’s argument was
supported by binding appellate precedent at the time of trial. See
Hurston, 310 Ga. at 829 (3) (b); Esprit v. State, 305 Ga. 429, 438 (826
SE2d 7) (2019) (“A criminal defense attorney does not perform
deficiently when he fails to advance a legal theory that would
require an extension of existing precedents and the adoption of an
unproven theory of law.” (citation and punctuation omitted)). We
conclude that Pugh has failed to make the required strong showing.
The substantive predicate of Pugh’s claim appears to be that
the warrant at issue here is analogous to the warrant we recently
concluded was an invalid general warrant in State v. Wilson, 315
Ga. 613 (884 SE2d 298) (2023) (decided Feb. 21, 2023). In that case,
we addressed a particularity challenge to a warrant that authorized
a “forensic examination” of a cell phone for “any and all stored
32
electronic information, including but not limited to” various
categories of electronic data. Id. at 613-614. Noting the warrant’s
“complete absence of limiting language,” we agreed with the trial
court that the warrant “authorized an impermissible general search
of [the appellant’s] cell phones” and, thus, affirmed the trial court’s
ruling suppressing evidence obtained pursuant to the warrant. Id.
at 615-616. Pugh sees similarities between the warrant we held
invalid in Wilson and the warrant at issue in this case, which he
characterizes as “an illegal general warrant.” Pugh says that, like in
Wilson, the warrant in this case “essentially” permitted “an
unlimited general search of information and records relating to the
[target] phone number” and “authorize[d] the broadest possible
search of the phone records for the most general categories of data
imaginable.”12 Pugh’s claim thus turns on our decision in Wilson and
his assertion that the warrant in this case is as obviously general in
nature as the warrant in Wilson.
12 Pugh does not argue that officers in fact conducted an unconstitutional
general search.
33
As an initial matter, however, Wilson was decided more than
four years after Pugh’s 2018 trial, so his trial counsel would not have
been able to rely on Wilson in challenging the warrant’s compliance
with the particularity requirement. See Hurston, 310 Ga. at 829 (3)
(b). Although Wilson does not represent a change in the law on
particularity, see Wilson, 315 Ga. at 616 (noting that “wellestablished legal precedent supports our conclusion that the trial
court properly suppressed the cell phone evidence”), it is the first
decision in which this Court applied the particularity requirement
to invalidate a warrant that authorized a search of the entirety of
electronic data contained on a cell phone and, thus, reflects an
extension of existing precedent. And as we have explained before,
when addressing a claim of ineffectiveness of counsel, the
reasonableness of counsel’s conduct is examined from
counsel’s perspective at the time of trial. Thus, a new
decision does not apply in a manner that would require
counsel to argue beyond existing precedent and anticipate
the substance of the opinion before it was issued.
Walker v. State, 306 Ga. 579, 583 (2) (b) (832 SE2d 420) (2019)
(citations and punctuation omitted). Trial counsel therefore cannot
34
“be deemed ineffective for failing to argue precedent that was not in
existence at the time of [the] trial.” Id.
Moreover, Pugh has not clearly shown, through his nearly
singular reliance on Wilson,13 that a motion to suppress on the basis
argued would have succeeded and, thus, has failed to make the
required “strong showing that the damaging evidence would have
been suppressed.” Reese, 317 Ga. at 201 (4) (a). Whereas the warrant
we considered in Wilson was, on its face, a general warrant—it
expressly authorized the seizure, without limitation, of “any and all
stored electronic information,” Wilson, 315 Ga. at 613—the warrant
here appears to be of a different character. Indeed, this warrant “did
not simply provide an unbounded description authorizing the search
and seizure of any and all data on the cell phone,” Perez v. State, 316
Ga. 433, 447 (3) (888 SE2d 526) (2023), but, rather, identified 18
separate categories of items, many of which appear to be sufficiently
13 In support of his claim of ineffective assistance, Pugh cites only Wilson
and one other decision of this Court, both of which were issued after his trial.
He also cites a decision of the District of Columbia Court of Appeals, which also
was issued after his trial and, of course, is not binding on this Court.
35
particularized, while others appear significantly broader in scope.
Further, unlike the warrant in Wilson and its “complete absence of
limiting language,” Wilson, 315 Ga. at 615, certain categories of the
warrant in this case are limited by time or by reference to the
specific crime under investigation, and additional categories appear
to be directed not toward facilitating a limitless search of Pugh’s cell
phone but to obtaining business-type records from Sprint. In sum,
taken as a whole, the warrant in this case is not as easily read as
the warrant in Wilson as authorizing the seizure of all data without
limitation on the target cell phone.
To be sure, certain portions of this warrant paint a broad stroke
and raise questions about the sort of particularity required in
warrants for the seizure of data contained on cell phones and of
records held by cell-service providers. But it does not appear to us
that Wilson alone can resolve these questions, and Pugh otherwise
makes no effort to grapple with them. Nor does Pugh cite, and we
have not found, any United States Supreme Court or Georgia
appellate precedent that clearly held, at the time of Pugh’s trial, that
36
a search warrant authorizing the seizure of a wide range of data
from a defendant’s cell phone and cell-service provider amounts to a
general warrant under these circumstances. See Hourin v. State,
301 Ga. 835, 844 (3) (b) (804 SE2d 388) (2017) (“In evaluating the
particularity of a warrant’s description, we must determine whether
the description is sufficient to enable a prudent officer executing the
warrant to locate it definitely and with reasonable certainty. The
degree of the description’s specificity is flexible and will vary with
the circumstances involved.” (emphasis supplied; citations and
punctuation omitted)). In short, whether this warrant constitutes a
general warrant presents a difficult question, and it is not apparent
to us that there is an obvious answer. We thus conclude that a
motion to suppress “on the ground now proposed” by Pugh “would
not clearly have succeeded,” and his trial counsel was not deficient
“in failing to make such a motion.” Ward, 313 Ga. at 275 (4) (b); see
also Reese, 317 Ga. at 201-202 (4) (a) (in the context of a different
legal question that presented a similarly difficult legal analysis on
the merits, identifying no deficient performance where appellant
37
failed to “clearly show” that a motion to suppress based on his
proposed argument would have been successful). Compare Bryant v.
State, 301 Ga. 617, 620 (2) (800 SE2d 537) (2017) (concluding that
trial counsel was deficient for failing to raise particularity challenge
to search warrant that “did not describe the items to be seized at all”
(emphasis in original; citation and punctuation omitted)).
3. Finally, Pugh asserts that motion-for-new-trial counsel was
constitutionally ineffective by failing to raise four claims of trial
counsel’s ineffectiveness. But these claims, which “simply recast his
trial-counsel ineffectiveness claims as motion-for-new-trial
ineffectiveness claims,” are procedurally barred.14 See Robinson v.
State, 306 Ga. 614, 616 (2) (b) (832 SE2d 411) (2019). This Court has
consistently held that a defendant cannot resuscitate a
specific claim of ineffective assistance of trial counsel that
was not raised at the motion for new trial stage by
recasting the claim on appeal as one of ineffective
14 In one claim, Pugh ostensibly challenges the manner in which motionfor-new-trial counsel pursued a “properly raised” claim of trial counsel
ineffectiveness concerning the motion to suppress cell phone records, but the
crux of Pugh’s argument on appeal is that motion-for-new-trial counsel should
have raised an additional or alternative claim of trial counsel ineffectiveness
with respect to the motion to suppress. Accordingly, this, like Pugh’s other
claims of motion-for-new-trial ineffectiveness, is simply another attempt at
improper bootstrapping.
38
assistance of motion-for-new-trial counsel for failing to
raise the specific claim of trial counsel’s ineffectiveness.
Id. at 617 (2) (b) (citation and punctuation omitted). See also Elkins
v. State, 306 Ga. 351, 362 (4) (b) (830 SE2d 217) (2019); King v. State,
304 Ga. 349, 351 (818 SE2d 612) (2018). Accordingly, these claims,
like the others, fail. 15
Judgment affirmed. All the Justices concur.
15 If Pugh “wishes to pursue a claim that his post-conviction counsel was
ineffective[,] he must do so through a petition for a writ of habeas corpus.”
Robinson, 306 Ga. at 617 (2) (b) n.5 (citation and punctuation omitted).
39
PINSON, J., concurring.
I concur fully in the Court’s opinion. Relevant to Division 2 (d)
of that opinion, I want to flag one important point about the Fourth
Amendment’s particularity requirement as applied to search
warrants for cell phones, because it’s going to come up again and
again.
In State v. Wilson, 315 Ga. 613 (884 SE2d 298) (2023), we held
that the search warrant for cell phones in that case violated the
Fourth Amendment’s requirement that a warrant “particularly”
describe “the place to be searched, and the persons or things to be
seized.” U.S. Const. amend. IV. The problem with that warrant was
not merely that it allowed police to search the entire contents of the
cell phones. The problem was that the warrant allowed police to
search the phones, seize every bit of data on them, and use anything
they found against the defendant without regard for whether any of
that data was evidence of the crime the defendant was accused of
committing. See Wilson, 315 Ga. at 615-616; id. at 624 (Pinson, J.,
concurring). In other words, the warrant on its face authorized the
40
long forbidden “general search[ ]”: the “exploratory rummaging in a
person’s belongings” for unspecified evidence of unspecified crimes.
Coolidge v. New Hampshire, 403 U.S. 443, 467 (II) (C) (91 SCt 2022,
29 LE2d 564) (1971), holding modified by Horton v. California, 496
U.S. 128 (110 SCt 2301, 110 LE2d 112) (1990); Marron v. United
States, 275 U.S. 192, 195 (1) (48 SCt 74, 72 LEd 231) (1927).
So Wilson’s takeaway was not that a search warrant for a cell
phone necessarily must list each specific kind or category of data the
police may look through when they search the phone’s contents. Just
as specifying the address of a home can be particular enough to allow
police to search rooms, closets, and cabinets throughout the home,
identifying a specific cell phone as the “place to be searched” may
well be particular enough to authorize police to look through the
contents of the phone. See United States v. Ross, 456 U.S. 798, 820-821 (IV) (102 SCt 2157, 72 LE2d 572) (1982) (“A lawful search of
fixed premises generally extends to the entire area in which the
object of the search may be found and is not limited by the possibility
that separate acts of entry or opening may be required to complete
41
the search.”); Peacock v. State, 314 Ga. 709, 717 (3) (b) (878 SE2d
247) (2022) (noting “it is well settled that a search warrant for a
home authorizes searching . . . containers” like “desks, cabinets,
closets, or ‘any other item of personal property’ in which the items
described in the search warrant might be stored” “without
separately identifying them with particularity” (cleaned up)).
Instead, the point to take from Wilson is that a search warrant for a
cell phone also needs to tell the police, with sufficient particularity,
what they can look for in their search of the phone. As we indicated
in Wilson, the warrant must limit the object of the search to evidence
of the crimes that the police have probable cause to believe the
suspect committed. Wilson, 315 Ga. 615-616; see id. at 617
(Peterson, P.J., concurring) (explaining the particularity
requirement, when met, “means that the warrant allows the officer
to identify the object of the search or seizure ‘definitely and with
reasonable certainty’”); Westbrook v. State, 308 Ga. 92, 97-98 (3) (a)
& n.5 (839 SE2d 620) (2020) (holding ineffective claim based on
failure to object to particularity of warrant was meritless because
42
search warrant “enable[d] a prudent officer to know to look for
photographs and videos” relating to the murder on the cell phone).
And “evidence of murder” generally is not particular enough,
although what further specificity is required will depend on the
nature of the crimes in question and the circumstances of a
particular case. See, e.g., Groh v. Ramirez, 540 U.S. 551, 554-555 (I),
557-559 (II) (124 SCt, 157 LE2d 1068) (2004) (warrant was not
sufficiently particular when it authorized a search of defendant’s
house, and was based on probable cause to believe house contained
illegal explosive weapons, but did not identify any items to be
seized); Bryant v. State, 301 Ga. 617, 619-620 (2) & n.3 (800 SE2d
537) (2017) (warrant was not sufficiently particular when it
authorized a search of defendant’s house and cars, and stated there
was probable cause to believe he had committed murder, but did not
specifically identify any property, items, articles, or instruments to
be searched for and seized); Dobbins v. State, 262 Ga. 161, 163-164
(3) (415 SE2d 168) (1992) (warrant was not sufficiently particular
when it authorized seizure of “certain property and/or materials of
43
a pornographic nature, to-wit, movies, pictures and magazines
which are contrary to the laws of the State of Georgia,” because it
did not specify how or why the items were believed to be obscene but
instead left that determination “entirely to the discretion of the
officers executing the warrant”). 16
In short, under Wilson, a search warrant for a cell phone must
identify with sufficient particularity both the cell phone that may be
searched and the object of that search. Anything less will not hold
up against a Fourth Amendment challenge.
With this understanding, I join the Court’s opinion.
I am authorized to state that Justice Warren, Justice Bethel,
and Justice McMillian join in this concurrence.
16 Of course, another question lurking here is what police can do with
something they find on a cell phone while searching for whatever the warrant
authorizes them to search for—that is, whether police can seize and use
nonresponsive data. As I noted in Wilson, we have not answered that question
yet. Wilson, 315 Ga. at 628-629 & n.12 (Pinson, J., concurring) (citing Orin S.
Kerr, Executing Warrants for Digital Evidence: The Case for Use Restrictions
on Nonresponsive Data, 48 Tex. Tech L. Rev. 1 (2015)).
44
PETERSON, Presiding Justice, concurring specially.
The majority’s analysis in Division 2 (b) regarding probable
cause supporting the warrant at issue in this appeal represents a
faithful application of Divisions 2 (a) (i) and 2 (b) (i) of our recent
decision in Ledbetter. I did not join that division of Ledbetter,
arguing that we should instead overrule our all-but-alreadyoverruled precedent of Gary v. State and resolve the issue by
applying the Leon good faith exception. See Ledbetter, __ Ga. at __
(Peterson, P.J., concurring specially). That remains my view, and so
I similarly concur specially in Division 2 (b) today.
But I write separately today to express an additional concern.
I am unconvinced by the Ledbetter majority’s probable cause
analysis. The probable cause required to support a valid warrant is
probable cause to believe that evidence will be found at the place to
be searched. The “place” to be searched in the warrants at issue in
Ledbetter were phone numbers. There was nothing at all in the
warrant affidavits about whose phones the numbers represented.
45
For the reasons the majority pointed out in Ledbetter, I’m not certain
that defeats probable cause. But I’m not certain it doesn’t, either. It
seems to me the only reasonable inference supported by the
Ledbetter majority’s reasoning is that the officers writing the
affidavits subjectively believed the numbers to belong to people
named in the affidavits; without some detail in the affidavits
explaining why they held that belief, I question whether it is
reasonable to take the next step the majority essentially took, that
of presuming from the fact of the officers’ belief that such belief was
itself supported by probable cause. We generally require warrant
affidavits to provide detail from which a neutral magistrate can
determine for themselves whether probable cause exists, rather
than merely defer to the unexplained implicit belief of law
enforcement. Because my concern about the majority’s probablecause analysis in Ledbetter applies equally to this case, I do not join
the majority’s application of that analysis here.
Making matters more difficult, little helpful federal precedent
46
exists on this question, because under federal law federal courts
rarely need to decide it because the Leon good faith exception
virtually always applies. And until we finally erase the last traces of
Gary, we’ll have to keep deciding these difficult, fact-bound
questions that federal law has rendered largely irrelevant.
47